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Wednesday, 7 June 2017

A Californian Court may soon hear on the copyright infringement of a "Facebook-style" cooking video featuring a cupcake recipe. Last
week, internet chef Elizabeth LaBau, aka ‘SugarHero’, filed a copyright infringement
claim against Television Food Networkbefore the Central District Court of
California. The crux of the dispute: LaBau's cooking video showcasing her flagship recipe “Snow Globe Cupcakes” (the complaint can be found here in full).

LaBau’s
complaint is clear: it does not seek copyright protection for the recipe embodied
in the film, but for the film itself (here).This
avenue may be one of the last ones left open to passionate foodies who dedicate
their life to creating new recipes, as the US Copyright Office and US Courts have
refused to extend copyright protection to recipes (here) or even recipe books
(see, Publications
International v Meredith Corporation 88 F 3d 473, at 480 (7th Circuit
1996) per Kanne J., contra. see, Belford
v Scribner 144 US 488). Consequently,
this new crave for 'how-to' cookingvideos trending on social media may be more
than just a marketing tool, it could also be a strategic legal move (depending on
forthcoming the Court’s decision).

The
complaint filed on LaBau’s behalf depicts a dispute by the likes of Davidand Goliath. The plaintiff is described as having dedicated “years
of hard work and late nights” to her project ‘SugarHero’, “competing with
numerous corporate food websites, often backed by large companies with deep
pockets” in a “oversaturated food market place”. To break through, LaBau worked
endlessly to develop “eye-catching” recipes paired with an effective social
media strategy (para 16). This is where the “Facebook-style video” at the crux
of this dispute comes in.

And one for the road...(photo by Serenitbee)

In
2014, LaBau developed her “Snow Globe Cupcake” recipe which was first published
on the SugarHero website (www.SugarHero.com)
(para 21). Though instantly popular, the recipe only went viral when LaBau
published the same recipe on Facebook using the regular post format (photo and
text) and linking it to the original recipe on her website (para 22). In 2016, LaBau produced a short cooking video of the recipe in “Facebook-style” to increase
traffic to her website further (para 24). The complaint describes that this
process took two months of production from the shooting to the editing, all of
which LaBau performed herself (para 25). Shortly after posting her clip on the
internet, SugarHero came across a similar video produced by Food Network, which
had been published on December 22, 2016. LaBau contacted the Network to request “credit
and attribution for her work, providing a link to her video for reference” (para
30).

The
complaint claimed that the “Food Network video” copied Labau’s work “shot-for-short”
(para 35) by reproducing protected elements of her clip such as “the choice of
shots, camera angles, colors, lighting, textual descriptors, and other artistic
and expressive elements of [LaBau]’s work” (para 28). SugarHero’s complaint
argued Food Network of free-riding on her “hard work”, “the time commitment of
recipe development and the cost of ingredients, coupled with the time cost of
photographing and videoing the cupcakes” which all in all amounted to a significant
investment on her part (para 35).

SugarHero's shot (left), Food network's shot (right)Source: BBC

The
complaint covers the expected elements of copyright infringement for a
cinematographic work, and as such does not put forward anything out of the ordinary.
However, the decision may set an interesting precedent for the food industry -
should the case reach this stage. If the Californian court sides with LaBau,
the decision may re-open the doors of copyright protection in cases of highly-visual or
unique recipes recorded in ‘how-to’ videos by their authors. Would that be a welcome development? At any rate, it is a
timely conversation to hold as a case on sensory copyright (in the taste of
cheese) is making its way to the CJEU, unearthing with it the legitimacy of intellectual
property protection for culinary works (here).

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